Judgments

[1994] 2 F.C. 769

T-546-94

The Honourable Mr. Justice Fernand L. Gratton (Applicant)

v.

The Canadian Judicial Council and The Attorney General of Canada (Respondents)

and

Canadian Judges Conference (Intervenor)

Indexed as: Gratton v. Canadian Judicial Council (T.D.)

Trial Division, Strayer J.—Ottawa, April 27 and May 18, 1994.

Judges and courts — Application for judicial review of decision to conduct inquiry into allegation of incapacity from due execution of office by reason of infirmity: Judges Act, s. 65(2)(a) — Applicant, judge of Ontario Court of Justice, off work since 1990 due to severe illness — Jurisdiction of Canadian Judicial Council to investigate under Act, s. 63(2) challenged — Breach of good behaviour only ground for removal of superior court judge under Constitution Act, 1867, s. 99(1) — Joint address of both Houses only way to remove federally appointed judge under s. 99(1) — Definition of grounds for removal to be consistent with essential purpose of judicial independance — Incapacity due to infirmity preventing judge from holding office during good behaviour.

Constitutional law — Judge seeking declaration Judges Act, ss. 63, 65 violate Constitution Act, 1867, s. 99(1), therefore of no force and effect — Judicial independence, public best served if superior court judges subject to removal only for breach of good behaviour — Parliament having legislative jurisdiction to enact provisions concerning judges’ removal — No unlawful delegation of functions assigned to it by s. 99(1) — Maxim delegatus non potest delegare not applicable as Parliament not delegate — Role of two Houses of Parliament under s. 99 neither adjudicative nor legislative — Canadian Judicial Council entitled to recommend removal from office but Parliament having ultimate responsibility to use joint address as only constitutional device for removal.

This was an application for judicial review of a decision of an Inquiry Committee to conduct an inquiry into the allegation that the applicant may have become incapacitated from the due execution of the office of judge by reason of infirmity within the meaning of subsection 65(2) of the Judges Act. The applicant is a judge of the Ontario Court of Justice (General Division) who was reportedly absent from work since early 1990 due to various medical problems including a severe stroke. The Canadian Judicial Council established an Inquiry Committee under subsection 63(3) of the Act to conduct an investigation into the allegation. The applicant challenged the constitutional validity of the proceedings before the Committee, but the latter ruled that Parliament had validly conferred authority on the Council and its Committee and that removal by the Governor General on the joint address of both Houses of Parliament is now the only method for removal of a judge. This application raised two main issues: 1) whether the tenure during good behaviour of a superior court judge established by section 99 of the Constitution Act, 1867 can be terminated on the basis of incapacity due to infirmity, and 2) whether Parliament invalidly delegated its subsection 99(1) powers to the Council or its Committee.

Held, the investigation should be allowed to continue.

1) To deal with the first issue, two questions had to be answered. First, is breach of good behaviour the only ground for removal? It was agreed that the only procedure available for the removal of a federally appointed judge is by act of the Governor General on address of both Houses of Parliament under subsection 99(1) of the Constitution Act, 1867. Although the interpretation of the English Act of Settlement (The), 1700 and reference to authors could be helpful in understanding the distinction between breach of good behaviour and other grounds for removal of judges, they are of little relevance today. Section 99 of the Constitution Act, 1867 is a constitutional instrument which must be interpreted in a purposive way and in the Canadian context. The definition of the grounds for removal should be those consistent with the essential purpose of judicial independence. In the context of our present constitutional structure, judicial independence, and therefore the public, will be best served if superior court judges are deemed to be subject to removal only for a breach of good behaviour. Judicial independence is too important to the balancing of our Constitution to leave available, for future choice by Parliament, grounds for removal other than breach of good behaviour.

The second question to be answered is whether incapacity prevents holding office during good behaviour. In deciding as to whether a judge can constitutionally be removed because he is “incapacitated or disabled”, the Inquiry Committee was “speaking of a permanent and not a temporary disability.” The Committee was right in concluding that even if the only ground for removal on joint parliamentary address were breach of good behaviour, this would extend beyond “misbehaviour” to include “non-behaviour” or the incapacity to perform the office. If the criterion for removal by reason of infirmity is limited to permanent infirmity, a sufficient objective test is imposed for the two Houses of Parliament to apply. It is not conceivable that they would pronounce a judge to be permanently disabled without very clear medical evidence before them. This interpretation may require a reading down of the word “infirmity” in paragraph 65(2)(a) of the Judges Act. A superior court judge who is permanently disabled so as to be incapable of performing his functions as a judge may constitutionally be in breach of good behaviour.

2) Parliament had the legislative jurisdiction to enact provisions concerning the removal of judges. Moreover, in the exercise of this jurisdiction, Parliament has not unlawfully delegated the very functions assigned to it by subsection 99(1). The maxim delegatus non potest delegare could not apply in this case since Parliament of Canada does not have the status of delegate. In Hodge v. Reg., the Judicial Committee of the Privy Council made it clear that the Parliament of Canada is not a delegate of the Imperial Parliament nor of any other institution with respect to the exercise of any of the authority conferred on it by the Constitution Act, 1867. It therefore has the power of a sovereign Parliament to delegate any of its functions. It is dangerous to characterize the role of the two Houses of Parliament under subsection 99(1) as “adjudicative”. The two Houses should focus on whether the judge in question has committed a breach of good behaviour. In this they are, like a court, limited to applying to the facts a particular criterion for removal imposed by the Constitution and they cannot act at large choosing any reason they deem appropriate for removal. Thus it is not a legislative process. Nor do sections 63 to 65 of the Judges Act confer an adjudicative function on the Canadian Judicial Council or its committees. All the Council can do is to “recommend” to the Minister of Justice that the judge be removed from office. The power to recommend is not the power to make a binding decision. Parliament has the ultimate responsibility to decide whether to use the only constitutional device for removal, namely the joint address.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Act of Settlement (The), 1700 (U.K.), 12 & 13 Will. III, c. 2, s. 3.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 24, 91, 99.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 38, 41, 43.

Federal Court Act, R.S.C., 1985, c. F-7, s. 2 (as am. by S.C. 1990, c. 8, s. 1).

Federal Court Rules, C.R.C., c. 663, RR. 1602(3) (as enacted by SOR/92-43, s. 19), 1618 (as enacted idem).

Judges Act, R.S.C., 1985, c. J-1, ss. 59(4), 63, 64, 65 (as am. by R.S.C., 1985 (2nd Supp.), c. 27, s. 5), 69 (as am. by S.C. 1992, c. 1, s. 144), 71.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. (4th) 688; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81; Hodge v. Reg. (1883-84), 9 A.C. 117 (P.C.).

APPLIED:

Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79.

CONSIDERED:

Edwards, Henrietta Muir v. Attorney-General for Canada, [1930] A.C. 124 (P.C.).

REFERRED TO:

Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (C.A.); Beauregard v. Canada, [1986] 2 S.C.R. 56; (1986), 30 D.L.R. (4th) 481; 26 C.R.R. 59; Landreville v. The Queen, [1977] 2 F.C. 726; (1977), 75 D.L.R. (3d) 36 (T.D.); Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; (1992), 89 D.L.R. (4th) 218; 3 Admin. L.R. (2d) 242; 133 N.R. 345; R. v. Généreux, [1992] 1 S.C.R. 259; (1992), 88 D.L.R. (4th) 110; 70 C.C.C. (3d) 1; A.G. for Canada v. A.G. for Nova Scotia, [1951] S.C.R. 31; [1950] 4 D.L.R. 369; Initiative and Referendum Act, In re, [1919] A.C. 935 (P.C.).

AUTHORS CITED

Anson, Sir William R. The Law and Custom of the Constitution, 4th ed. by A. B. Keith. Oxford: Clarendon Press, 1935.

Brazier, Rodney. Constitutional Practice. Oxford: Clarendon Press, 1988.

Cheffins, R. I. and R. N. Tucker. The Constitutional Process in Canada, 2nd ed. Toronto: McGraw-Hill Ryerson, 1976.

de Smith, S. A. Constitutional and Administrative Law, 2nd ed. Middlesex, England: Penguin Books, 1973.

Heard, Andrew David. Canadian Constitutional Conventions: the Marriage of Law and Politics. Toronto: Oxford University Press, 1991.

Hogg, Peter W. Constitutional Law of Canada, 3rd ed. (Supplemented). Toronto: Carswell, 1992.

Kaufman, I. R. “Chilling Judicial Independence” 1979, 88 Yale L.J. 681.

Kennedy, W. P. M. The Constitution of Canada 1534-1937, 2nd ed. London: Oxford University Press, 1938.

Kurland, P. B. “The Constitution and the Tenure of Federal Judges: Some Notes from History” 1969, 36 U. Chi. L. Rev. 665.

Lederman, W. R. “The Independence of the Judiciary” 1956, 34 Can. Bar Rev. 769.

Mallory, J. R. The Structure of Canadian Government, Rev. ed. Toronto: Gage.

Roberts-Wray, Sir Kenneth. Commonwealth and Colonial Law. London: Stevens & Sons, 1966.

Russell, Peter H. The Judiciary in Canada: The Third Branch of Government. Toronto: McGraw-Hill Ryerson, 1987.

Shetreet, Shimon. Judges on Trial. New York: North- Holland Pub. Co., 1976.

Todd, Alpheus. On Parliamentary Government in England, 2nd ed. London: Longmans, Green, and Co., 1889.

Wade, E. C. S. and A. W. Bradley. Constitutional Law, 8th ed. by G. Phillips. London: Longman, 1970.

APPLICATION for judicial review of a decision to conduct an inquiry into the allegation that the applicant may have become incapacitated from the due execution of his office of judge by reason of infirmity under subsection 65(2) of the Judges Act. Application dismissed.

COUNSEL:

Ian G. Scott, Q.C. and Martin J. Doane for applicant.

Harvey W. Yarosky for respondent Canadian Judicial Council.

Brian R. Evernden for respondent Attorney General of Canada.

M. James O’Grady, Q.C. and Katherine J. Young for intervenor Canadian Judges Conference.

SOLICITORS:

Gowling, Strathy & Henderson, Ottawa, for applicant.

Yarosky, Daviault, LaHaye, Stober & Isaacs, Montréal, for respondent Canadian Judicial Council.

Deputy Attorney General of Canada for respondent Attorney General of Canada.

O’Grady and Young, Ottawa, for intervenor Canadian Judges Conference.

The following are the reasons for order rendered in English by

Strayer J.:

Relief Requested

The applicant seeks judicial review of a decision dated January 26, 1994 of an Inquiry Committee appointed by the Canadian Judicial Council under subsection 63(3) of the Judges Act[1] to conduct an inquiry into the allegation that the applicant may have become incapacitated or disabled from the due execution of his office of judge by reason of infirmity within the meaning of subsection 65(2) [as am. by R.S.C., 1985 (2nd Supp.), c. 27, s. 5] of the Judges Act.

The notice of motion seeks, inter alia, the following relief:

(a) an order setting aside the decision dated January 26, 1994 of the Inquiry Committee of the Respondent Canadian Judicial Council appointed under s. 63(3) of the Judges Act, R.S.C. 1985, c. J-1, as amended, in relation to the Investigation and the constitutional challenges by the Applicant to the jurisdiction of the Respondent Canadian Judicial Council and the Inquiry Committee;

(b) a declaration that sections 63(2), 63(3), 65(1), and 65(2)(a) of the Judges Act, R.S.C. 1985, c. J-1, as amended, violate the Constitution Act, 1867, and are therefore of no force and effect;

(c) an order quashing or declaring unlawful the Investigation commenced by the Respondent Canadian Judicial Council pursuant to s. 63(2) of the Judges Act, R.S.C. 1985, c. J-1, as amended, into whether the Applicant has become incapacitated or disabled from the due execution of the office of judge by reason of age or infirmity, pursuant to s. 65(2)(a) of the Judges Act….

The hearing of this motion took place on April 27, 28 and 29, 1994. As a further hearing of the Inquiry Committee was scheduled for late May a decision was urgent. I therefore issued an order on May 6, 1994 disposing of the application. I indicated that written reasons would follow. These are those reasons.

Facts

The applicant is a judge of the Ontario Court of Justice (General Division) having been originally appointed as a judge of the District Court of Ontario on November 17, 1967. He became a member of the General Division upon court merger on September 1, 1990. On September 12, 1991 he elected to give up his regular judicial duties and to become a supernumerary judge in which position he would by law continue to receive a regular judicial salary. On September 28, 1992 the late Honourable F. W. Callaghan, Chief Justice of the Ontario Court, submitted to the Canadian Judicial Council a report that there was reason to believe that the applicant was

‘incapacitated or disabled from the due execution of the office of judge by reason of age or infirmity’ within the meaning of s. 65(1)(a) [sic] of the Judges Act.

He alleged that the applicant had not returned to work since early 1990, having suffered various medical problems and on March 13, 1990 a “severe and debilitating stroke.”

The relevant provisions of the Judges Act are as follows:

63. …

(2) The Council may investigate any complaint or allegation made in respect of a judge of a superior or county court or of the Tax Court of Canada.

(3) The Council may, for the purpose of conducting an inquiry or investigation under this section, designate one or more of its members who, together with such members, if any, of the bar of a province, having at least ten years standing, as may be designated by the Minister, shall constitute an Inquiry Committee.

(4) The Council or an Inquiry Committee in making an inquiry or investigation under this section shall be deemed to be a superior court and shall have

(a) power to summon before it any person or witness and to require him to give evidence on oath, orally or in writing or on solemn affirmation if the person or witness is entitled to affirm in civil matters, and to produce such documents and evidence as it deems requisite to the full investigation of the matter into which it is inquiring; and

(b) the same power to enforce the attendance of any person or witness and to compel the person or witness to give evidence as is vested in any superior court of the province in which the inquiry or investigation is being conducted.

(5) The Council may prohibit the publication of any information or documents placed before it in connection with, or arising out of, an inquiry or investigation under this section when it is of the opinion that the publication is not in the public interest.

(6) An inquiry or investigation under this section may be held in public or in private, unless the Minister requires that it be held in public.

64. A judge in respect of whom an inquiry or investigation under section 63 is to be made shall be given reasonable notice of the subject-matter of the inquiry or investigation and of the time and place of any hearing thereof and shall be afforded an opportunity, in person or by counsel, of being heard at the hearing, of cross-examining witnesses and of adducing evidence on his own behalf.

65. (1) After an inquiry or investigation under section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister.

(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of

(a) age or infirmity,

(b) having been guilty of misconduct,

(c) having failed in the due execution of that office, or

(d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of that office,

the Council in its report to the Minister under subsection (1), may recommend that the judge be removed from office.

It is apparent that Chief Justice Callaghan was alleging that the applicant comes within paragraph 65(2)(a), namely that he is incapacitated from the due execution of the office of judge by reason of age or infirmity.

On November 12, 1992 the Judicial Conduct Committee of the Canadian Judicial Council established a panel to consider the allegation made by Chief Justice Callaghan. The panel concluded on November 20, 1992 that the applicant “may have become incapacitated or disabled from the due execution of the office of judge pursuant to subsection 65(2) … by reason of (a) infirmity and (c) having failed in the due execution of office.” The Council considered the report of its panel on March 26, 1993 and decided that an investigation should be held pursuant to subsection 63(2) of the Judges Act into the allegation that the applicant “may have become incapacitated or disabled from the due execution of the office of judge pursuant to subsection 65(2) of the Judges Act.” The Inquiry Committee established under subsection 63(3) consisted of The Honourable E. D. Bayda, Chief Justice of Saskatchewan, Chairman; Honourable B. Hewak, Chief Justice, Court of Queen’s Bench of Manitoba; Honourable L. A. Poitras, Chief Justice, Superior Court of Quebec; and two Ontario barristers appointed by the Minister of Justice of Canada pursuant to his authority under subsection 63(3): namely, F. P. Kitley of Toronto and G. L. Guénette, Q.C. of Ottawa.

This Inquiry Committee met on November 1, 2 and 3, 1993 solely to deal with constitutional issues raised by the applicant. The Committee was advised at that time by Mr. Harvey Yarosky, Q.C., independent counsel retained by the Council, that the sole allegation before the Committee would be that Mr. Justice Gratton may have become incapacitated from execution of the office “by reason of infirmity.” After hearing argument the Committee adjourned further proceedings pending a determination of the constitutional issues, and the hearing into the merits of the matter has yet to take place. It therefore must be emphasized that so far both the Committee and this Court are dealing with essentially a hypothetical question: namely, have the provisions of the Judges Act validly conferred upon the Inquiry Committee the authority to inquire, with the possible result of a recommendation by the Canadian Judicial Council to the Minister of Justice that a judge should be removed from office, into an allegation that such judge has become incapacitated or disabled from the due execution of his office by reason of infirmity? No evidence has been heard as to the actual condition of the applicant, the judge in question.

Before the Committee the applicant challenged the constitutional validity of the proceedings on grounds which I have summarized as follows:

(i) Parliament has unlawfully purported to give to the Council and its Committee authority which is vested solely in Parliament by subsection 99(1) of the Constitution Act, 1867.[2] That section of the Constitution provides as follows:

99. (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

(2) A judge of a superior court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.

(ii) The Inquiry Committee has been established as a superior court whereas it includes two non-judicial members who do not have the tenure guaranteed to superior court judges. Therefore the Committee is invalidly constituted.

(iii) The alleged ground of incapacity is not, constitutionally, a valid ground for removal of a judge as subsection 99(1) guarantees tenure to superior court judges until the age of seventy-five during “good behaviour.” In the view of the applicant, incapacity based on infirmity does not constitute a breach of good behaviour.

With respect to the first objection, the Inquiry Committee concluded that Parliament had validly conferred the relevant authority on the Council and its Committee. It held that Parliament had implicit authority under subsection 99(1) and the opening words of section 91 of the Constitution Act, 1867 to enact legislation providing for a process of investigation and recommendation to the Minister with respect to complaints against federally-appointed judges. The Committee appears to have taken the view that subsection 99(1) confers on Parliament a kind of adjudicative function, but one which had not been delegated by Parliament. That is, Parliament retained the ultimate authority to decide whether a judge should be removed. It held that Parliament had not abdicated its responsibility under subsection 99(1) and cited various authors and international instruments favouring the policy of investigation of complaints against the judiciary by members of the judiciary.

With respect to the second question, the Inquiry Committee found that it had not been made a superior court as it does not have the power to adjudicate disputes between parties. This issue has been abandoned by the applicant in the present proceedings.

With respect to the third constitutional issue raised before it, the Inquiry Committee concluded that removal by the Governor General on the joint address of both Houses of Parliament is now the only method for removal of a judge. The Committee was not unanimous, however, on the permissible grounds for removal. The majority took the view that grounds for removal are not limited to the breach of “good behaviour;” that other unspecified grounds were open to Parliament which would have to be “gleaned from common law, parliamentary tradition and any other consideration which would maintain and enhance the principle of judicial independence.” Chief Justice Poitras dissented from this view. He was prepared to say only that:

[a] judge who is unable or unwilling to perform the duties of the office of judge fails to comply with the requirement of holding office “during good behaviour” and may thus be removed.

If I understand correctly, the rest of the Committee was in agreement that in any event “non-behaviour or the incapacity to perform the office” would be a ground for removal as a breach of good behaviour.

The applicant seeks to have these conclusions set aside, a declaration that the relevant parts of the Judges Act are invalid, and the quashing of the investigation. The matter comes before this Court on the submission of the applicant, which was not contested, that the Inquiry Committee is a “federal board, commission or other tribunal” within the meaning of section 2 of the Federal Court Act.[3]

Two days before the hearing of this motion was to commence the Canadian Judges Conference applied to be admitted as an intervenor. This is a voluntary organization of federally-appointed judges, of whom some 93% belong to the Conference. This somewhat untimely application was consented to by the parties. As a result I gave leave for the intervention on the basis that the Conference could make submissions at the hearing and participate in, but not initiate, an appeal.

The original style of cause described the respondents as

THE CANADIAN JUDICIAL COUNCIL BY ITS INDEPENDENT COUNSEL, HARVEY YAROSKY and THE ATTORNEY GENERAL OF CANADA

At the hearing before me Mr. Yarosky who appeared as counsel for the Canadian Judicial Council suggested that his name should be removed from the style of cause as he was not a party to the proceedings. I acceded to that request. I can understand the uncertainty which counsel for the applicant experienced in determining who should be named as respondents. As has been confirmed recently by the Federal Court of Appeal in Canada (Human Rights Commission) v. Canada (Attorney General)[4] a tribunal should not be named as a party on a judicial review of its decision. That, as counsel for the applicant explained, is the reason why the Inquiry Committee was not named as a party. I believe however that it was appropriate to name the Canadian Judicial Council as a party pursuant to Rule 1602(3) [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] which provides:

Rule 1602. …

(3) Any interested person who is adverse in interest to the applicant in the proceedings before the federal board, commission or other tribunal shall be named as a respondent in the notice of motion.

It appears to me that the Canadian Judicial Council for all intents and purposes appeared before the Inquiry Committee in a position adverse to the interest of the applicant on the issues under judicial review. The Council obviously assumed in creating the Committee and referring this investigation to it that the Council had the jurisdiction to do so under the Judges Act. According to the report of the Committee, Mr. Yarosky was retained by the Canadian Judicial Council to act as an “independent counsel” before the Committee. It was his function to “gather, martial and present any evidence relevant to the allegation.” It appears that Mr. Yarosky took a position opposed to the applicant but supportive of the Council’s position on the constitutional issues before the Committee, just as he did when he submitted argument on behalf of the Canadian Judicial Council before me. Therefore the Council was properly named as a party and it was not appropriate to add Mr. Yarosky as respondent as he personally has no interest in the matter beyond that of counsel. The Attorney General of Canada is of course an appropriate party because, inter alia, a declaration is being sought against the validity of an Act of Parliament.

Issues

The first issue which the applicant has identified in this application is the following:

(1)  Can the tenure during good behaviour of a superior court judge established by s. 99 of the Constitution Act, 1867 be terminated on the basis of incapacity due to infirmity?

I believe to deal with this issue I must answer two questions:

(a) Are there grounds for removal of a superior court judge other than breach of “good behaviour?”

(b) If not, can an incapacity prevent a judge holding office “during good behaviour?”

It is assumed that this issue is relevant to the validity of the Inquiry Committee’s process because if there is no constitutional possibility for removal of a judge simply for incapacity then no inquiry should be undertaken of that incapacity for the purpose of recommending removal. No one disputed this assumption.

The applicant describes the second issue as follows:

(2)  Does s. 99 of the Constitution Act, 1867 authorize the introduction and involvement of the Judicial Council in the removal process of a superior court judge, including the commencement of proceedings against a judge prior to any motion in Parliament, the holding of an adjudicative hearing concerning the judge’s right to contine [sic] in office, the making of a report to Parliament about the hearing, and a recommendation to Parliament about whether or not the judge should be removed from office?

Conclusions

Judicial Independence

I will not indulge in another panegyric on judicial independence, its meaning and its importance. Authoritative expressions of its nature and role can be found elsewhere.[5] Suffice it to say that independence of the judiciary is an essential part of the fabric of our free and democratic society. It is recognized and protected by the law and the conventions of the Constitution as well as by statute and common law. Its essential purpose is to enable judges to render decisions in accordance with their view of the law and the facts without concern for the consequences to themselves. This is necessary to assure the public, both in appearance and reality, that their cases will be decided, their laws will be interpreted, and their Constitution will be applied without fear or favour. The guarantee of judicial tenure free from improper interference is essential to judicial independence.[6] But it is equally important to remember that protections for judicial tenure were “not created for the benefit of the judges, but for the benefit of the judged”.[7]

I have endeavoured to respect and apply this concept of judicial independence in the following analysis.

(1) Good Behaviour Tenure Terminable for Incapacity from Infirmity

(a) Is Breach of Good Behaviour the Only Ground for Removal?

This question is fundamental since, if the grounds are unlimited and in Parliament’s discretion then the answer to the question raised in the applicant’s first issue must be in the affirmative.

To determine what are the grounds for removal one must of course begin with subsection 99(1) of the Constitution Act, 1867 which for convenience will be repeated here:

99. (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

Professor Peter Hogg has succinctly stated the problem of interpretation which subsection 99(1) presents:

The question is whether s. 99 provides for one mode of removal or two. It could be read as meaning that a judge may be removed only by joint parliamentary address and then only for bad behaviour. But the section could also be read as meaning that a judge may be removed for bad behaviour by the government without the need for a joint parliamentary address, and may in addition be removed for any reason whatsoever (not necessarily involving bad behaviour) by a joint parliamentary address. On principle, the former interpretation is preferable, because it is more apt to secure the independence of the judiciary, which is the purpose of the provision.[8]

In the present proceedings the applicant in essence adopts Professor Hogg’s first possible interpretation: namely, that a judge can only be removed by joint address of Parliament and only for bad behaviour in the sense of some wilful misconduct. Therefore, he says, a judge cannot be removed because he is incapable of performing the office of judge. While the Canadian Judicial Council does not now contend that there is some procedure for removing judges other than upon joint address, its counsel argues that Parliament may remove a judge for any reason such reasons to be defined and constrained by constitutional conventions. On the other hand the Attorney General takes the view that, whether or not there are other grounds for removal, an inability to perform the functions of the office preclude a judge from holding that office during good behaviour. The Canadian Conference of Judges contends that the only ground for removal is breach of good behaviour and the only method is a joint address.

Therefore all the parties and the intervenor agree that the only procedure available today for the removal of judges is by act of the Governor General on address of both Houses of Parliament. The possible existence of other procedures in the past is only marginally relevant to the interpretation of the Canadian Constitution but I will deal with it briefly since much stress has been placed in argument both before the Inquiry Committee and before this Court on the interpretation of the English Act of Settlement (The), 1700.[9] That statute provided that:

Judges Commission be made quamdiu se bene gesserint, and their Salaries be ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.

Counsel for the Canadian Judicial Council has cited numerous authors[10] who to varying degrees support the following interpretation of the The Act of Settlement, 1700. In the century preceding its adoption the Stuart Kings had typically appointed judges during pleasure (durante bene placito) thus making them subject to dismissal by the king should he disapprove of their judgments. After the “Glorious Revolution” of 1688 the practice which had been followed during the Commonwealth was restored, namely appointment of judges during good behaviour (quamdiu se bene gesserint). This practice was formalized by The Act of Settlement, 1700 which came into operation upon the ascent of the House of Hanover in 1714. The Glorious Revolution marked the triumph of Parliament over the king and the provision in The Act of Settlement, 1700 must be read in that light. It had always been open to the king to have judges removed by the writ of scire facias by which the grant of any tenure could be terminated upon a breach of the conditions of the tenure. The grant was regarded as a form of property given for life but with title defeasible through breach of condition. This body of academic opinion therefore holds that the first part of the 1700 provision, “judges commissions be made quamdiu se bene gesserint” thus established the sole condition upon which the king could seek termination of a judicial commission, namely a failure to fulfil the condition of good behaviour. The second part of that provision, “but upon the address of both Houses of Parliament it may be lawful to remove them” must, it is said, be seen as in contrast to the limited right of the king to seek termination of a judicial appointment. Opened, as it is, by the word “but”, the second phrase must be read disjunctively as referring to a different procedure for removing judges to which no criteria were attached and which had nothing to do with the property grant conditional on good behaviour. That is, apart from the limited power of the king to seek termination only for lack of good behaviour, Parliament could remove judges for any reason. It is said that this interpretation is most consistent with the triumph of the English Parliament over the king at the end of the 17th Century. The implication is that whereas the king could formerly terminate “at pleasure” appointments at his will but could no longer do so, now Parliament could terminate judicial appointments for any reason subject only to such limitations as it imposed upon itself. One cannot minimize the importance of those self-denying limitations: I understand that there has been only one instance of the U.K. Parliament removing a judge since 1700 although several proceedings have been commenced in Parliament for that purpose.

Two observations can be made on this body of learning as to the meaning of the The Act of Settlement, 1700. First, it is striking that all of the authors cited directly rely on the works of Alpheus Todd published in the 1880s[11] or cite as their authorities other authors who in turn relied on Todd. Yet when one examines Todd with particular reference to the problem before this Court, removal for incapacity, his authorities seem somewhat wanting. In a key passage he states that the grant of an office during good behaviour is the creation of an estate for life in the office. He then goes on to say:

Such an estate is terminable only by the grantee’s incapacity from mental or bodily infirmity, or by his breach of good behaviour.[12]

Here Todd is speaking of the means for removing a judge other than by joint address of the Houses of Parliament. It will also be noted that he distinguishes between “mental or bodily infirmity” and “breach of good behaviour.” He goes on to explain that “forfeiture must be enforced by a scire facias”.[13] Todd then goes on to discuss removal by joint address which he describes as a method additional to that already described. He says of the power conferred on the two Houses of Parliament by The Act of Settlement, 1700:

This power is not, in a strict sense, judicial; it may be invoked upon occasions when the misbehaviour complained of would not constitute a legal breach of the conditions on which the office is held. The liability to this kind of removal is, in fact, a qualification of, or exception from, the words creating a tenure during good behaviour, and not an incident or legal consequence thereof.[14] [Emphasis added.]

As far as I can ascertain, Todd cites no direct authority for the distinction he makes between removal for want of good behaviour and the grounds open to the two Houses of Parliament for removal. The examples he cites of efforts (one successful) to remove a judge through parliamentary action appear to me all to involve real or alleged misconduct amounting to a breach of good behaviour.

The more serious problem with adopting the Todd analysis is that it is, after all, an interpretation of the English Act of Settlement (The), 1700 and not of section 99 of Canada’s Constitution Act, 1867. The 1700 Act was an ordinary statute which in fact has been amended several times since to make it more responsive to contemporary needs. The problem it was said to have been intended to resolve was the elimination of the king’s control over judges, replacing therefor Parliament’s control which was acceptable because of Parliament’s victory in the Glorious Revolution.

On the other hand, section 99 of the Constitution Act, 1867 is a constitutional instrument which must be interpreted in a purposive way and in the Canadian context. No evidence was produced to me of contemporary opinion in 1867 to suggest that the Fathers of Confederation, in borrowing the language of The Act of Settlement, 1700, intended that this section of the Canadian Constitution should be construed as if adopted as part of the domestic statutory law of England in 1700. Judicial tenure during pleasure had been replaced by tenure during good behaviour in British North America well before Confederation.[15] Judicial office was not treated as a form of property in Canada. There is certainly nothing to suggest that the writ of scire facias had ever been used in Canada either before or after Confederation for the removal of judges. (Indeed it seems generally accepted that in England by 1867 the writ of scire facias was no longer available even there.) Thus there is no reason to think that section 99 was a measure consciously adopted to ensure that Parliament could supplement the traditional proprietary conditions of tenure of judicial office by removing judges for any reason it thought appropriate. Nor does the subsequent practice in Canada suggest that Parliament understood itself to have the right to remove judges for any reason other than a breach of good behaviour. The only official statement brought to my attention as to an unlimited power of removal existing in Parliament was that of a Justice Minister, Honourable Lucien Cardin, in the form of a letter to counsel for Mr. Justice Landreville in 1965. In rejecting the suggestion that the government refer to the Supreme Court of Canada the meaning of the words of section 99 “during good behaviour” the then Minister stated:

… it is open to Parliament to make an address for the removal of a judge on any ground it sees fit whether it constitutes misbehaviour in office or not.[16]

I am not aware of any endorsation of this very broad statement either in parliamentary addresses or constitutional convention.

All parties and the intervenor in these proceedings and the Inquiry Committee[17] agree that scire facias is not available now and that the only method of removal of a federally appointed judge in Canada is by joint address under subsection 99(1). The Supreme Court has also confirmed that parliamentary action is the only method of removal.[18] This suggests that all the ancient learning, even if it were valid, concerning the distinction between breach of good behaviour (a property condition enforceable by scire facias) and other grounds (only available in Parliament) is of little relevance today and that we should interpret subsection 99(1) in the context of the structure created by Confederation as it has evolved down to the present.

In this connection it is instructive, for those who seek their constitutional interpretations in English domestic law of bygone centuries, to consider the famous case of Edwards, Henrietta Muir v. Attorney-General for Canada.[19] That case was, of course, concerned with the interpretation to be given to section 24 of the Constitution Act, 1867 which provides that “The Governor General shall from Time to Time … summon qualified Persons to the Senate”. The question was whether “persons” could include women. The Judicial Committee of the Privy Council, acknowledging domestic British jurisprudence holding that “persons” did not include women particularly having regard to the common law disabilities of women, came to the conclusion that in the context of the Canadian Constitution “person” did include women. Lord Sankey L.C. wrote:

Over and above that, their Lordships do not think it right to apply rigidly to Canada of to-day the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.

…

The communities included within the Britannic system embrace countries and peoples in every stage of social, political and economic development and undergoing a continuous process of evolution. His Majesty the King in Council is the final Court of Appeal from all these communities, and this Board must take great care therefore not to interpret legislation meant to apply to one community by a rigid adherence to the customs and traditions of another.

…

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. “Like all written constitutions it has been subject to development through usage and convention”: Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55.

Their Lordships do not conceive it to be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation.[20]

The fact that this approach was frequently eschewed by other panels of the Judicial Committee does not detract from its inherent wisdom. Can Canadian courts ignore it?

Turning then to the particular context in which subsection 99(1) must operate, our Constitution has from its outset been federal in nature. The Houses of Parliament referred to in subsection 99(1) were not all-powerful as those referred to in The Act of Settlement, 1700. The powers of the Parliament of Canada were always limited to those areas not conferred on provincial legislatures. Unlike their English counterparts, the judges whose tenure was provided in our Constitution are obliged to adjudicate on the very limits of the powers of the Parliament which can remove them. This has always been the case in the judicial enforcement of federalism. More recently our courts have been given the responsibility for interpreting the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] which obliges them from time to time to determine whether Parliament and those responsible to it have intruded on the constitutionally guaranteed rights of the individual. All of these circumstances create infinitely more possibilities for the decisions of Canadian courts to conflict with the views of Canadian parliamentarians. In the course of doing their judicial duty judges may be obliged to make decisions which are seen as frustrating important public policy, forcing politically difficult decisions on parliamentarians through the striking down of laws, or seriously impacting on the revenues or expenditures of the government. In these circumstances, so remote from the expression of unbridled parliamentary sovereignty in England after the Glorious Revolution, it is not appropriate to interpret subsection 99(1) by the supposed meaning of the 1700 statute as derived from the hypotheses of learned authors; no matter how distinguished they may be, their views cannot be determinative of the present meaning of section 99 of the Constitution Act, 1867. Instead it is necessary to give a meaning to subsection 99(1) which, having regard to the role of Canadian superior courts as guardians of the constitutional constraints imposed on Parliament, will properly limit the grounds for removal and therefore the discretion of Parliament in the dismissal of superior court judges. The definition of the grounds for removal should be those consistent with the essential purpose of judicial independence. I respectfully adopt the language of the Inquiry Committee:

In the end, statutory interpretation, constitutional history, common law decisions, parliamentary debates and tradition and the views of legal writers all provide assistance. However, none of these provides a definitive answer to the question before us. In these circumstances, it is important to return to the underlying principle which is involved. The nature and importance of this principle was discussed in our introductory comments. In other words, what interpretation of section 99(1) best contributes to the maintenance and enhancement of the principle of Judicial independence in Canada today?

The principle of judicial independence is not an end in itself. Rather, it has the underlying purpose of providing service to the public.[21]

In my view, and with the greatest respect to those who hold a contrary view, in the context of our present constitutional structure judicial independence, and therefore the public, will be best served if the tenure of superior court judges is deemed to be subject only to removal for a breach of good behaviour. With respect I would decline, as did Chief Justice Poitras, to endorse the conclusion of the majority of the Inquiry Committee that subsection 99(1) allows Parliament to remove judges for reasons other than breach of good behaviour, the Committee declining to specify such grounds of removal but instead leaving them to

be gleaned from common law, parliamentary tradition and any other considerations which would maintain and enhance the principle of judicial independence.[22]

Instead it appears to me that judicial independence is too important to the balancing of our Constitution to leave available, for future choice by Parliament, grounds for removal other than breach of good behaviour. I have seen no evidence that at the time of Confederation or thereafter there was any common understanding that Parliament’s powers were so wide or that such wide powers were or are necessary. Notwithstanding the erudition of many authors, and notwithstanding certain syntactical arguments which one can apply in their support in the analysis of subsection 99(1), it appears to me that the commonly held understanding that section 99 protects the tenure of judges as long as they comply with the good behaviour requirement is also the constitutionally correct interpretation. In this I concur with the view of Professor Hogg, as quoted at the beginning of these reasons, that good behaviour is the only criterion for judicial tenure because that interpretation is “more apt to secure the independence of the judiciary, which is the purpose of the provision”.[23] Several other authors appear to agree that good behaviour is the sole criterion.[24] This also seems consistent with the view of one of Canada’s greatest constitutional scholars, W. P. M. Kennedy, who said that:

The judges of the superior courts hold office during good behaviour, and they can only be removed by the governor-general on address of the senate and house of commons.[25] [Emphasis added.]

(b)       Does Incapacity Prevent Holding Office During Good Behaviour?

As a trial judge I am obliged to limit my decision to the facts of the case actually before me involving the particular decision under judicial review. The Inquiry Committee confirmed that in deciding as to whether a judge can constitutionally be removed because he is “incapacitated or disabled”, they were “speaking of a permanent and not a temporary disability.”[26] The Committee’s conclusions as to the validity of their actions and of the provisions of the Judges Act must, I think, be understood within that context: namely that the permanent disability of a judge would constitutionally warrant his removal and that that is the nature of the allegation with which the Inquiry Committee will be dealing.

On that basis, I respectfully agree with the unanimous view of the Inquiry Committee that:

Even if it were accepted that the only ground for removal on joint parliamentary address were breach of good behaviour, this would extend beyond “misbehaviour” to include “non-behaviour” or the incapacity to perform the office.[27]

There is no authoritative jurisprudence in Canada on this question nor is there any extended analysis of it in the legal literature which has been brought to my attention.

Even going back to the interpretation of The Act of Settlement, 1700 there is confusion as to the connotation of good behaviour and what will constitute a lack of good behaviour. The venerable Todd stated, in a passage already quoted above:

The legal effect of the grant of an office during “good behaviour” is the creation of an estate for life in the office. Such an estate is terminable only by the grantee’s incapacity from mental or bodily infirmity, or by his breach of good behaviour. But like any other conditional estate, it may be forfeited by a breach of the condition annexed to it; that is to say, by misbehaviour.[28] [Emphasis added.]

As the Inquiry Committee observed, this passage is “difficult to comprehend.”[29] The Committee suggested an interpretation whereby two concepts are involved: that the office is “terminable” when the grantee is incapacitated by mental or physical infirmity or when the grantee is otherwise incapable of fulfilling the office (breach of good behaviour); and that the office may be “forfeited” for “misbehaviour.” Among the grounds rendering the office terminable, Todd appears to distinguish between incapacity and breach of good behaviour, the two concepts being separated by an or. It is helpful however to note that he does not equate “breach of good behaviour” with “misbehaviour.” While the latter, as explained by him subsequently, appears to involve some wilful act which might result in forfeiture of the office, there seem to be situations, perhaps not amounting to wilful acts, which would amount to a breach of good behaviour and which would make the office terminable. Confirmation that the passage is indeed difficult is found in Professor Lederman’s interpretation of it. He says that Todd means that:

… a grantee can fail in “good behaviour”, that is to say, can fail to “well demean himself in his office”, by “incapacity from mental or bodily infirmity” as well as by the wilful means mentioned.[30]

In this Professor Lederman appears to equate incapacity with breach of good behaviour, even though Todd speaks of “the grantee’s incapacity from … infirmity, or by his breach of good behaviour”.

Be that as it may, there is a strong suggestion in Todd and Lederman that one could fail to meet the requirement of good behaviour without wilful misconduct, even under The Act of Settlement, 1700. It appears to me that such an interpretation is fully appropriate today in relation to subsection 99(1) of the Constitution Act, 1867, at least to the extent that a permanent disability could give rise to a breach of good behaviour or, as the Inquiry Committee suggested, “non-behaviour.” It is most consistent with meeting the purpose of judicial independence which is not only that the public should be served by decisions rendered without fear or favour but also that it should simply be served. I respectfully adopt the language of the Inquiry Committee:

We are of the view that it is important for continued public confidence in the administration of justice that a person who holds the office of judge not be permanently incapable of fulfilling the office of judge.[31]

At the same time it adequately protects judges from improper threats to their security of tenure. If the criterion for removal by reason of infirmity is limited to permanent infirmity then I believe a sufficiently objective test is imposed for the two Houses of Parliament to apply. This will not invite allegations of temporary incapacity. Nor is it conceivable that the two Houses of Parliament would pronounce a judge to be permanently disabled without very clear medical evidence before them.

If this interpretation requires a reading down of the word “infirmity” in paragraph 65(2)(a) of the Judges Act then I am prepared to read it down. No specific argument was addressed to me on this point although counsel for the applicant by implication suggested that the bare word “infirmity” was overinclusive. He, however, was not prepared to concede that any form of infirmity should be the basis for removal.

It also appears to me that the interpretation of “good behaviour” as excluding non-behaviour for infirmity is consistent with Parliament’s own interpretation of that phrase as expressed in section 69 [as am. by S.C. 1992, c. 1, s. 144] of the Judges Act. Subsection 69(1) provides as follows, referring to the Judicial Council:

69. (1) The Council shall, at the request of the Minister, commence an inquiry to establish whether a person appointed pursuant to an enactment of Parliament to hold office during good behaviour …

…

should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d). [Emphasis added.]

Paragraph 65(2)(a) provides of course that the Council may recommend removal of a judge who in its opinion “has become incapacitated or disabled from the due execution of the office … by reason of … infirmity.” This demonstrates that Parliament itself considers incapacity due to infirmity to amount to a breach of good behaviour or “non-behaviour”, since the procedure under section 69 applies only to those appointed to hold office during good behaviour. This should be an indication as to how the two Houses of Parliament would exercise their power of removal of judges for breach of good behaviour.

I am therefore of the view that a superior court judge who is permanently disabled so as to be incapable of performing his functions as a judge may constitutionally be found to be in breach of good behaviour.

(2) Has Parliament Invalidly Delegated Its Subsection 99(1) Powers to the Council or its Committee?

The essential position taken by the applicant here is that:

Parliament must initiate, preside over and control all proceedings related to the removal of a superior court judge.[32]

There are essentially two elements to this argument: that section 99 does not confer any legislative power on Parliament to provide for a system of investigation and recommendation by the Canadian Judicial Council in respect of the possible removal of a judge, as it has purportedly done in sections 63-65 of the Judges Act; and that the function imposed on the two Houses of Parliament by section 99 of the Constitution is an adjudicative function which cannot be delegated, as this would be contrary to the principle of delegatus non potest delegare. The Inquiry Committee, in rejecting similar arguments presented by the applicant before it, found that Parliament does have power to legislate with respect to the removal of federally appointed judges, that it is not precluded from having some of the preliminary processes carried out in another forum, and that there is no unlawful delegation because both legally and as a practical matter Parliament retains the ultimate authority to decide whether a judge should be removed. The Committee went on to identify and endorse what it viewed as a “sound policy reason for the introduction of a judicial element into the removal process”.[33]

I respectfully agree with the constitutional conclusions of the Inquiry Committee although my reasons may differ in certain respects.

I am satisfied that Parliament has the legislative jurisdiction to enact provisions concerning the removal of judges as it has done. Professor Lederman writing almost forty years ago expressed the view that:

…the cumulative effect of sections 96 to 100 inclusive is to assign by necessary implication to the federal parliament legislative power over the appointment, tenure and removal of provincial superior-court judges, subject to the limitations contained in these sections themselves.[34]

That “implication” is equally to the effect that provincial legislatures do not have any legislative authority in the matter. This view has been recently confirmed and enlarged in obiter dicta by La Forest J. in the Supreme Court decision of MacKeigan v. Hickman.[35] He expressed the view that as matters such as the removal of superior court judges fall outside the scope of provincial legislation, they are subjects upon which Parliament could legislate pursuant to its residual power under section 91 of the Constitution Act, 1867 to make laws “in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”. He also expressed the view that the specific power of removal conferred on the two Houses of Parliament in subsection 99(1) does not preclude Parliament from providing mechanisms:

… for dealing with inquiries or complaints relating to the performance of judicial functions that are either not sufficiently serious as to warrant proceedings for removal, or which may precede or assist the conduct but not constitute an impediment to the proper functioning of such proceedings, or effectively amount to a substitute for them.[36]

I respectfully adopt this reasoning in finding that Parliament had legislative authority to enact the relevant provisions of the Judges Act.

Nor do I think Parliament in the exercise of this jurisdiction has unlawfully delegated the very functions assigned to it by subsection 99(1). There is a basic conceptual problem with trying to apply to Parliament the maxim delegatus non potest delegare, which is to say that a delegate may not delegate. Of whom, it may be asked, is the Parliament of Canada a delegate? I had thought that the notion of Canadian legislatures being “delegates” of the Imperial Parliament, which created or continued them by the Constitution Act, 1867, had been laid to rest over a century ago by the Judicial Committee of the Privy Council in Hodge v. Reg. In that case it was argued that the legislature of Ontario could not delegate to a board of license commissioners the power to pass resolutions regulating taverns and shops. The maxim delegatus non potest delegare was invoked. Sir Barnes Peacock, writing on behalf of the Judicial Committee, stated:

It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect.[37] [Emphasis added.]

If this can be said of provincial legislatures it must, as the passage assumes, apply a fortiori to the Parliament of Canada which inherited all residual legislative powers in respect of Canada not specifically conferred on provincial legislatures. I am unaware of any authoritative jurisprudence which has since overruled or qualified the Hodge decision in this respect.

But, the applicant argues, the Hodge case dealt with the delegation of legislative power. What is involved in sections 63-65 of the Judges Act is the delegation of an adjudicative function of Parliament and Hodge does not deal with the delegation of adjudicative functions. Although the Inquiry Committee itself refers to Parliament’s function in this respect as adjudicative,[38] I have, with respect, much difficulty in characterizing it as such. First, I put aside all lyrical descriptions of the House of Commons and the Senate as the “High Court of Parliament” as urged upon me on behalf of the applicant. This appellation when applied to the Parliament at Westminster has both historic and vestigial relevance to that institution. Parliament there grew out of the Curia Regis which was the origin of many courts and in which executive, legislative and judicial functions were intermixed. In its early stages of development, Parliament did on occasion function as an ordinary court. Some vestiges of judicial function still remain at Westminster, particularly in the Committee of the House of Lords which is the final appellate court and in certain archaic roles of the House of Lords in the trial of peers, etc. None of this has any relevance to the Parliament of Canada which sprang forth fully formed, de novo, from the Constitution Act, 1867. More importantly, to characterize the function of the two Houses under subsection 99(1) as “adjudicative” could lead to very serious implications. One can imagine for example that a judge whose removal was called for by the resolutions of both Houses might attack his removal as illegal on the basis that “he who decides must hear” and that not every member in each House who voted for the resolution had heard all of the evidence against the judge. It is difficult to imagine a hearing being carried out by the full membership of each House, perhaps over the course of some weeks, without absences of some of those who might ultimately vote on the resolution in reliance on Hansard as to what had transpired before. The “adjudicative” analysis would certainly put into question the right of Parliament to assign even to its own select committee, as the applicant suggests is the proper procedure, the hearing of evidence and argument for report back to the full House: if the applicant is correct that it is an adjudicative function conferred on the two Houses by section 99, and that adjudicative functions cannot be delegated, then it is difficult to see how the matter of a hearing could be assigned to a select committee. One can also imagine the infinite possibilities for allegations of apprehended bias, interest, public commitment to a particular position prior to the hearing, etc. where the “adjudicators” number some 400 political figures.

It is therefore dangerous to characterize the role of the two Houses of Parliament under section 99 as “adjudicative.” It is true that there are certain aspects of that function which would be akin to a court proceeding. The two Houses should, consistently with my earlier conclusions, focus on whether the judge in question has committed a breach of good behaviour. In this the two Houses are, like a court, limited to applying to the facts a particular criterion for removal imposed by the Constitution and they cannot act at large choosing any reason they deem appropriate for removal. For this reason it is not a legislative process. Nor can a decision to remove be regarded as legislation since the process is one of resolution calling upon the Governor General to act, and not a process of enactment. In this respect it is not unique, the Constitution now providing also for constitutional amendment to be carried out on the basis of resolutions passed by the two Houses and by the legislative assemblies of the provinces.[39] There is little to gain, and considerable danger, in assigning a particular rubric to special functions of this sort conferred upon the two Houses of Parliament.

Even if it were a judicial power which those two Houses were given under section 99, sections 63-65 of the Judges Act do not confer an adjudicative function on the Canadian Judicial Council or its committees. It is true that a council can cause a committee to carry out an inquiry as to whether a judge should be removed, but ultimately all that the Council can do is to “recommend” to the Minister of Justice that the judge be removed from office. The power to recommend is not the power to make a binding decision.[40] It is surely a central requirement of adjudication that the tribunal in question have the power to make a binding decision. Parliament has not conferred that authority on the Canadian Judicial Council or its Inquiry Committee and therefore, even if Parliament can be said to have an adjudicative function, it has not delegated it. Again if it were thought to be an adjudicative power conferred on the Committee some practical problems could arise in particular cases. I will not comment on situations such as the present where the complaint is filed by a member of the Canadian Judicial Council, which Council appoints the majority of the Committee from its own membership.[41] But I would draw attention to possible objections to the “adjudication” of a complaint brought by the Minister of Justice under subsection 63(1) where he could, as is his right under subsection 63(3), appoint on an ad hoc basis enough lawyers to constitute the majority of the Inquiry Committee for the hearing of his own complaint. This kind of structure, if adjudication were involved, would not pass muster as an independent tribunal even in a military setting.[42] This reinforces the view that Parliament never intended the Inquiry Committee’s role to be adjudicative.

Further, I do not accept the argument of the applicant that the Hodge case has no application to the delegation of powers by Parliament other than legislative powers. Even assuming that section 99 confers some adjudicative powers on Parliament and that it has purported to delegate that power, the maxim delegatus non potest delegare still has no application. It is fundamental to the decision in Hodge v. Reg. that the Parliament of Canada is not a delegate of the Imperial Parliament nor of any other institution with respect to the exercise of any of the authority conferred on it by the Constitution Act, 1867. Therefore it has the power as a sovereign Parliament to delegate any of its functions.

In this connection there are of course limitations on what Parliament can do. It clearly cannot transfer its power to a provincial legislature or vice versa since the Constitution prescribes the distribution of powers as between these two orders of government.[43] Nor can it, for example, provide for laws to be made without the participation of all three elements of Parliament as prescribed by the constitution, namely the Governor General, the Senate, and the House of Commons.[44] It was therefore, in my respectful view, appropriate for the Inquiry Committee to consider the question of whether Parliament had abdicated its functions under section 99 in favour of the Canadian Judicial Council. Counsel for the applicant regarded the abdication issue as irrelevant because, in his view, what was at issue was unlawful delegation and such delegation may be unlawful even if the ultimate power is not abdicated by the delegator. For reasons already stated, I consider the delegatus non potest delegare maxim to be irrelevant but do consider it necessary to ensure that Parliament has not abdicated the power specifically assigned to the two Houses of Parliament by section 99. Like the Inquiry Committee, I am satisfied that Parliament has not done so. It is for the Canadian Judicial Council to recommend removal, but Parliament has the ultimate responsibility to decide whether to use the only constitutional device for removal, namely the joint address. There is nothing in the Judges Act which precludes Parliament considering the removal of a judge without any recommendation from the Council. Indeed section 71 of the Judges Act specifically preserves Parliament’s power in this respect. With respect to the argument that Parliament cannot, as a practical matter, refuse to implement the recommendation of the Canadian Judicial Council, I believe this is only speculation: among other things, it ignores the great potential for inaction where there is little enthusiasm in Parliament for a particular decision to be taken.

The applicant raised certain essentially policy criticisms of the investigation process provided by the Judges Act, including the fact that in theory at least it exposes a judge to complaints by anyone including disgruntled litigants or those acting out of “malice or revenge.” Such complaints may be taken up by the Canadian Judicial Council and publicly aired before an Inquiry Committee. Such hearings can be held in public or in private “unless the Minister requires that it be held in public.” In theory at least the judge’s reputation may be badly damaged by the mere holding of the inquiry no matter what its outcome. These are all important concerns as to how the system might operate, even though in fact the Council employs many safeguards. But at best such criticisms go to the wisdom of the particular provisions of the Judges Act and not to their constitutional validity.

The Inquiry Committee, and counsel for the Canadian Judicial Council before me, also treated as relevant what they regarded as some of the advantages of this system. I might therefore be permitted to make one or two observations on that subject. It is striking that subsection 63(3) of the Judges Act allows the Judicial Council, where it thinks an inquiry or investigation should be held, to appoint as many members of the Council as it sees fit to be members of the committee. Members of the Council are, with rare exceptions[45] all chief justices. To this committee may be added, by the Minister of Justice, as many qualified members of the Bar as he sees fit to designate. Nowhere is there any provision for a puisne judge to be appointed to such a committee. One can only speculate as to the rationale for this structure, which seems to be based on military or bureaucratic models. Without minimizing in any way the important role and responsibility which fall to chief justices, nor the great experience and wisdom they can bring to the work of such committees, it appears passing strange that the perspective of puisne judges is not thought to be of as much value on such a committee as, for example, that of lawyers chosen ad hoc for the occasion by the Minister of Justice. Counsel for the Canadian Judicial Council invoked in aid of the Council’s support for the present system certain international pronouncements on the removal of judges. For example the Universal Declaration on the Independence of Justice of 1983 states that proceedings for removal should be

held before a court or a board predominantly composed of members of the judiciary and selected by the judiciary.

The International Bar Association adopted a Code of Minimum Standards of Judicial Independence in 1982 which provides that legislatures may be vested with the powers to remove judges:

preferably upon a recommendation of a judicial commission.

While the Canadian system does involve members of the judiciary in this process, the international instruments do not appear to limit judicial membership in such bodies to chief justices.

Disposition

In my order of May 6, 1994 I therefore allowed the investigation to continue on the basis that a judge can only be removed for breach of good behaviour and that the failure to perform the functions of the office of judge by reason of permanent infirmity would constitute a breach of that condition of tenure. The decision of the Committee was thereby modified to the extent that it is inconsistent with this finding. I declined to make any declaration or decision going beyond the requirements of the particular case before this Inquiry Committee.

As costs could only be awarded if there were “special reasons”, as prescribed by Rule 1618 [as enacted by SOR/92-43, s. 19], and as no such reasons were suggested to me, no costs were awarded.

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